Hume falsely claimed that "no one" had been prosecuted under Connecticut anti-contraceptive law in Griswold case; law prof Kmiec agreed

On the October 24 edition of Fox News' Special Report, host Brit Hume falsely claimed that "no one was prosecuting" those who violated a Connecticut law that prohibited the use or provision of contraceptives, which was overturned in the U.S. Supreme Court's 1965 decision in Griswold v. Connecticut -- the case that established the constitutional right to privacy. In fact, the case involved the operators of a New Haven, Connecticut, birth control clinic who had been arrested, prosecuted, convicted, and fined under the state law. Douglas W. Kmiec, a constitutional law professor at Pepperdine University, concurred with Hume's false assertion, responding, "That's right."

Kmiec also agreed with Hume's misleading assertion that "some critics" of Griswold believed the Connecticut law could not be enforced "without invading people's bedrooms, which hadn't happened." However, Kmiec added that the law was "a criminal statute, and they [the clinic's operators] could have been subject to fine and imprisonment." Without noting that the appellants had, in fact, been fined $100 for their role as "accessories" in helping a married couple violate the contraception ban, Kmiec went on to insist that the law "was largely a statute that went unenforced, and it was largely unenforceable." Kmiec then said:

KMIEC: The court could have taken a very judicially restrained posture and simply said that this is one of those statutes that is arbitrary, and unenforceable, and beyond the scope of the law. But instead, Justice William O. Douglas, writing for the majority of the court, created a phrase, "penumbras, formed by emanations" from the text of other provisions of the Constitution.

But while it is true that Connecticut's law went largely unenforced with regard to individual contraceptive use and distribution by private doctors, as a result of police shutting down a clinic in 1939, under authority of the contraception law, some Connecticut residents had to go out of state in order to obtain contraception. Citing a 1990 Iowa Law Review article by Mary Dudziak, then a professor at the University of Iowa, University of Southern California law professor David B. Cruz noted in a Summer 2000 article in the Harvard Civil Rights-Civil Liberties Law Review that the law had been used to prosecute a birth control clinic's operators in 1939. According to a June 7, 1985, Associated Press article, from the time the police shut down the clinic in 1939 until the 1965 Griswold ruling, "Planned Parenthood supporters would arrange for carloads of women to go to out-of-state clinics."

According to a June 12, 1995, Connecticut Law Review article, over the next two decades, Planned Parenthood repeatedly attempted to have the Connecticut law repealed by the state legislature or overturned by the courts. In 1961, Estelle Griswold, then the executive director of the Planned Parenthood League of Connecticut, and C. Lee Buxton, a doctor at Yale Medical School, were arrested shortly after opening a birth control clinic in New Haven. City University of New York law professor William C. Heffernan noted in a Fall 1995 Suffolk University Law Review article that Griswold and Buxton "welcomed the prosecution" as a chance to overturn the law:

Indeed, Griswold and Buxton actively sought such a prosecution to secure judicial review of the statute's constitutionality. In November 1961, Griswold held a New Haven news conference announcing that Planned Parenthood would engage in activities that the statute was designed to prohibit. She announced that her organization would open a clinic that would dispense birth control devices to married couples. When police officers raided the clinic shortly after its opening, Griswold actually offered to help find former patients who would testify against her in court.

One of those patients, the Rev. Joan Forsberg, was quoted in the June 7, 1985, AP article as saying: "If I went to a private physician with high fees, I could have gotten birth control, but I was a married woman of low income, and I couldn't afford that."

As the Supreme Court noted in laying out the facts of the case, Griswold and Buxton "were convicted as accessories for giving married persons information and medical advice on how to prevent conception and, following examination, prescribing a contraceptive device or material for the wife's use. A Connecticut statute makes it a crime for any person to use any drug or article to prevent conception." Griswold and Buxton were fined $100 each; under the law, they could have faced up to a year in prison. As the court noted:

The statutes whose constitutionality is involved in this appeal are 53-32 and 54-196 of the General Statutes of Connecticut (1958 rev.). The former provides:

"Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned."

Section 54-196 provides:

"Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender."

The court found that Connecticut's law violated a constitutional right to privacy emanating from the First, Third, Fourth, and Ninth Amendments.

From the October 24 edition of Fox News' Special Report with Brit Hume:

HUME: Professor Kmiec, welcome. The case is Griswold v. Connecticut, 1965. People may have heard of it. But what about it? What happened in the case of Griswold v. Connecticut?

KMIEC: Griswold was a case testing the constitutionality, Brit, of a Connecticut statute that prohibited the use of contraceptives. And it was challenged by a married couple and the doctors who were assisting them in getting a prescription for contraceptive devices. The Supreme Court held that, even though the Constitution doesn't talk about this subject at all, that there's nothing in the text or history of the document, that there was a protected individual right, which has now been summarized as a privacy right, that allowed this married couple to use contraceptives without the interference of the state of Connecticut.

HUME: Now, some critics of that decision have said that the court could have decided this on other grounds, to wit, for example, that this was a law that was sort of patently unenforceable without invading people's bedrooms, which hadn't happened. These people hadn't been arrested under the law. No one was prosecuting them, correct?

KMIEC: That's right. This was largely a test case, although it was a criminal statute, and they could have been subject to fine and imprisonment. But the fact of the matter is, it was largely a statute that went unenforced, and it was largely unenforceable. And so, you're right. The court could have taken a very judicially restrained posture and simply said that this is one of those statutes that is arbitrary, and unenforceable, and beyond the scope of the law. But instead, Justice William O. Douglas, writing for the majority of the court, created a phrase, "penumbras, formed by emanations" from the text of other provisions of the Constitution.

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